Cabot Financial - Defending a court claim

[citizenB]

Are they still attempting to collect on s69...

 

 

3. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

[SHERLOCK]

POC's haven't changed so I am assuming yes. Do I need to point this out in a letter??

[Hadituptohere]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim and / or required to substantiate your rights to, validity of, and assigned balance, with regards the above account:

 

 

1, the default notice

2, the termination notice

3, Original Creditor ‘assigned balance’ confirmation letter.

 

 

Your claim has been allocated to the small claims track for determination, in consequence, the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

I would add 4. A copy of the Deed of Assignment/sale Agreement

Hadituptohere

[Hadituptohere]

rhodium78 very interested in this

 

The assignment argument is complex and hence you will need to know how many assignees are in the chain before it got to you as there is a defence if there are multiple assignees and they have not notified you but that is for later.

 

maybe a new thread to enlighten the lesser mortals...

 

Hadituptohere

[SHERLOCK]

Thanks for some VERY useful advice, will re-draft letter and send on Monday.

 

SHERLOCK

[Rhia]

I wonder if Rhodium is referring to the way these assignments are passed to companies offshore? It's some sort of "tax efficiency" as my own barrister delicately put it.

 

Most notable is MBNA/Cabot assignments (see my thread on this). We unearthed a number of cases where they were assigned offshore via Dublin.

 

HFO Services (and there are a number of threads on CAG most notably VJohn's Barclaycard/HFO) where the debts are assigned offshore via the Cayman Islands.

 

This is all to do with securitisation of these debts and the murky world of tax avoidance. This is my own take and may or may not be correct:

Debt is written off by Original Creditor who offsets against own tax bill then sells to a DCA for anything between 3-20 pence in the £ (apparently the price is affected by the quality of the white data which accompanies it).

 

To avoid DCA paying VAT on purchase, Creditor assigns to DCA via offshore arrangement.

 

DCA then transfers to another company within its organisation who then collects the debt. It is at this stage they pay VAT on collected debts - I believe.

 

This gives rise to argument has the debt been correctly assigned between inhouse companies such as Cabot Financial (Europe) is the vehicle through which the debt is purchased but Cabot Financial (UK) is the administration arm. HFO has an even more complex arrangement.

 

Perhaps it's getting too complex for the stage you're at but get that Deed of Assignment/Sales Deed as it may turn out to be gold in the end.

[Hadituptohere]

Your right this isnt where Sherlock is at, at the momment, was wondering if rhodium is willing to maybe start a new thread that would come in usefull with regards to his ideas on defences regarding mutiple assignees, as in my case all be it struck out but went from Providian to Monument/Barclays to Cabot Europe to Cabot UK.

 

Hadituptohere

[Rhia]

Wasn't going to post this here but realised it is relevant and Sherlock may find interesting. Monument was a trading style of Barclays Bank and was based in Sussex. APRs average 30% and is aimed at those with impaired credit history. At some stage it became Provident.

 

Barclays sold most of the business to US firm Compucredit for £390m in April 2007 but less than a year later the Atlanta based company went into Chapter 10 (basically bust).

[SHERLOCK]

30% seems about right, should push up the charges refund somewhat

 

Wouldn't mind, got this card when unemployed (as per ticked box on 'reply card')!!

 

Hoping all will come out in the wash, as they say. Is it possible for Morgan to push for trial OR can I keep requesting stays for as long as required. (I am assuming if the onus is on the DCA / OC to provide the doc's and UNTIL then a hearing is pointless), I am sure someone will tell me I am wrong.

 

It appears Compucredit are back!! CompuCredit - Who We Are - Company Fact Sheet then again maybe not, their annual reports finish in 2006!

Edited June 25, 2010 by SHERLOCK

[rhodium78]

Wow, this thread has been busy.

 

I know this is off topic a little bit but when I was referring to multiple assignments of debt, we are going into a territory which can be used as a defence but with the certain caveats, that there is the right to interplead that the Debtor has that the Claimant can argue for to happen which is bad news for the Debtor and the current assignee can also bring into the action all the assignees and OC.

 

If A sells to B a chose in action (debt) under most of the provisions of s 136 of LOPA 1925, and B does not notify the debtor of this, then as the assignment is imperfect, it can be classified as an equitable assignment at best, at worst, only contractual rights.

 

Again, this means that when B then sells it onto C, it is not a s 136 sale BUT a s 53(1)c sale which requires equitable dispositions to be in writing. The effect of a purported equitable assignment that does not comply with this section will be to confer on the assignee merely contractual rights. As for equity, there are rules and consideration for an equitable assignment hence I would suggest reading up on it as it is a big topic.

 

As mentioned, it does not stop the Claimant from pursuing you, but it does make their life so much harder and they would prefer to discontinue rather than show the internal dealings of their group of companies which could attract the attention of the tax man.

[Rhia]

As mentioned, it does not stop the Claimant from pursuing you, but it does make their life so much harder and they would prefer to discontinue rather than show the internal dealings of their group of companies which could attract the attention of the tax man.

 

 

And that is exactly what Cabot has done when presented with one of MBNA's Irish agreements. They tried to say it was a one off mistake but when a number of others were produced it more or less...filleted their donkey to use a popular CAG legal term.

 

I believe s53 involves trusts. It is probably too much for Sherlock to present at this stage IMHO and I woudl stick to The Plan but as Had It up To Here suggests perhaps a new thread could examine this aspect.

Edited June 25, 2010 by Rhia

[andrew1]

Wasn't going to post this here but realised it is relevant and Sherlock may find interesting. Monument was a trading style of Barclays Bank and was based in Sussex. APRs average 30% and is aimed at those with impaired credit history. At some stage it became Provident.

 

Barclays sold most of the business to US firm Compucredit for £390m in April 2007 but less than a year later the Atlanta based company went into Chapter 10 (basically bust).

 

Now all you have to do is find out whether it was securitised by the US firm - then they are in trouble

[rhodium78]

Trust me when I say that s 53(1)c catches the transfer of an equitable interest... it is well known in the Banking arena and is something which many commentators comment on as regards computerisation of debt securities/negotiable instruments.

 

Edit: Paraphrased s 53(1)c:

 

a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.

Edited June 25, 2010 by rhodium78

[andrew1]

Trust me when I say that s 53(1)c catches the transfer of an equitable interest... it is well known in the Banking arena and is something which many commentators comment on as regards computerisation of debt securities/negotiable instruments.

 

Edit: Paraphrased s 53(1)c:

 

a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.

 

Yes, but if it's securitised in the US then that changes the dynamics somewhat doesn't it?

[rhodium78]

Not sure I follow and I don't understand how a simple assignment of debt from one creditor to an assignee to another assignee involves securitisation and with it, the regulatory oversight of the FSA?

[andrew1]

Wow, this thread has been busy.

 

I know this is off topic a little bit but when I was referring to multiple assignments of debt, we are going into a territory which can be used as a defence but with the certain caveats, that there is the right to interplead that the Debtor has that the Claimant can argue for to happen which is bad news for the Debtor and the current assignee can also bring into the action all the assignees and OC.

 

If A sells to B a chose in action (debt) under most of the provisions of s 136 of LOPA 1925, and B does not notify the debtor of this, then as the assignment is imperfect, it can be classified as an equitable assignment at best, at worst, only contractual rights.

 

Again, this means that when B then sells it onto C, it is not a s 136 sale BUT a s 53(1)c sale which requires equitable dispositions to be in writing. The effect of a purported equitable assignment that does not comply with this section will be to confer on the assignee merely contractual rights. As for equity, there are rules and consideration for an equitable assignment hence I would suggest reading up on it as it is a big topic.

 

As mentioned, it does not stop the Claimant from pursuing you, but it does make their life so much harder and they would prefer to discontinue rather than show the internal dealings of their group of companies which could attract the attention of the tax man.

 

Well you obviously know your way around the assignment of debt. Rhia mentioned the sale of the business by Barclays to a US firm which looks like it went bust. Securitisation is not a subject I can debate particularly well, but I do know the effects of securitisation in the US is different than the UK and therefore the sale becomes absolute if securitised in the US, you cannot have an equitable sale in the US - or so I believe. Given that most things in the banking world are securitised these days then ownership is sometimes difficult to prove.

 

If as you say this were a straight forward assignment executed correctly in the UK then you are right, it should not be as complex as I am implying, but I'm in the Cabot Fan Club and we know the key to most things is in the nitty gritty detail no-one wants you to see so we go looking deeper than most throwing the odd spanner in the works just to liven up debate and to encourage further investigation. As our Ken knows only too well to his cost - You don't feck with the Cabot Fan Club! ( and get away with it lightly)

Edited June 26, 2010 by andrew1

[SHERLOCK]

F***kers are starting to ring me now, really ****ing me off . Letter sorted asap, THEY started the claim not me, not my bloody problem if it's 'STAGNATING'...their words not mine!!

 

Wasn't happy with me going along nicely and getting their monthly (albeit) small payment. At least they were getting something, now they're gonna have to sit tight whilst I, yes I, bide my time,

 

Happy hunting,

 

SHERLOCK

[Rhia]

Which arm of Cabot is calling you? Is it the collections department? Or Morgans?

 

If it is the collections department just write to them (send a copy of the claim form issued by Morgans) and state a) you will only deal with this in writing and b) as Morgans has started the proceedings you will not be making any offers or payments until the court has decided if you are liable to pay.

 

Unfortunately, the collections department won't be cross referencing with Morgans even though it will say on the data entered into their computer that proceedings have been issued.

 

If it's Morgans calling you...then what do they want?

[SHERLOCK]

Hi Rhia,

 

Morgan's apparently. Basically, conversation went like this:

 

Them - "Hello, can we speak to Sherlock"

Me - 'yeh speaking'

Them - "Can you confirm your date of birth please?"

Me - 'Bye'

 

Are you suggesting I should enquire as to the nature of the call, get names, department etc., rather than hanging up?

 

We have never had a call from Cabot in 3 years (have had letters). Unfortunately, did put a 'tick' in the box that I was open to mediation prior to the hearing but I don't think I provided my telephone number , not that it matters, I was a Private Investigator in my past life and I know you can easily get ex-directory numbers. I guess this is maybe their way of showing that they were willing to come to a conclusion without the need for a hearing.

 

They also stated 'these calls are recorded', blah, blah...

 

Not sent letter off yet, but should I also include not to ring, or will this show me in a bad light with regard the ongoing negotiations? My guess is the call is to enquire if I'm going to sign the TO because I don't know any other reason to ring?

 

Thanks, SHERLOCK

[Rhia]

Now that's an odd one, because it sounds like their collection activity people with that sort of dialogue. I don't suppose they left a number did they?

 

If it was Morgan's you do need to listen to what they have to say and see if it is an attempt to settle up with you. So call them and ask if they called (if you see what I mean).

 

Actually was recently involved helping someone who went through the court's mediation service in Small Claims and it worked quite well but I learnt (on this particular occasion) that all they were doing was agreeing a figure to settle on rather than get into detailed legal argument with regard to the CCA. But it was quite quick and straightforward. Just thought I'd share that with you.

[SHERLOCK]

Seems fair enough Rhia, but are they gonna accept a couple of hundred quid on a 4000 account?

 

Morgans / Cabot must have seen my I&E as I have to submit it yearly thru' Payplan. At least I think they see it? Dunno if they just get quoted a figure and agree to it?

 

SHERLOCK

[Rhia]

Ah Sherlock you know my view on this. I would challenge them completely on this issue as from what you have told us they don't have any right to collect this at all, no enforceable agreement.

 

Even if the default argument is set to one side; under CCA s61(1) (a) and 127 (3) they can't enforce and as the "agreement" is pre 2007 no court can enforce, particularly as you have suffered prejudice.

 

It's your call completely if you decide to come to some arrangement with them. I think we have probably explored all the options. It's make your mind up time.

 

BTW you say you have given Cabot your I&E and you are on PayPlan. Never been on it myself but my understanding is they can't take action against you if you are Payplan. This story is very odd indeed isn't it?

Edited June 28, 2010 by Rhia

[SHERLOCK]

Payplan's position: Questions on Debt Management Plans | Debt Advice | Payplan

 

As a DMP isn't legally binding creditors could still take action against you. As Payplan have many years experience and have a great relationship with the creditors this is less likely to happen. However Payplan would continue to support you if any of your creditors applied to the court for a CCJ. Even if a creditor applied to the court for a CCJ the payment should remain similar to what you are paying through Payplan.

 

I give my I&E to Payplan, I am not sure if creditors get to see it?

 

And for the record, if I can squirm out of this without paying another penny I will...........morally corrupt I am.

 

SHERLOCK

[Hadituptohere]

Well as Rhia has said above Sherlock using your words 'theres plenty of room to squirm' although it is cabot/morgans that have squirmed to get the case this far..

 

Your situation isnt far from my previous possition, dont let the rascals get away with pressuring you into a TO when there the ones on dodgy ground..

 

Hadituptohere

[andrew1]

 

 

And for the record, if I can squirm out of this without paying another penny I will...........morally corrupt I am.

 

SHERLOCK

 

Do you know Sherlock, one has to laugh when looking at this quote of yours as I don't suppose there's a debtor out there who might actually feel deep inside the desire to do exactly the same. There has been no better example of trying to get Cabot on the run than those of us in the Cabot Fan Club and all who followed in our wake.

 

Yet that is not what the Cabot Fan Club has aspired to do, whether Mr Maynard ever would be convinced of that I doubt, but all we have ever asked Cabot to do is ABIDE BY THE LAW and the Regulations which oversee their business. - It's a fine line because Cabot themselves, even at the dizzy levels of higher management scream blue murder when they are pressurised by us to get them to abide by these rules or if we use this 'White Data' they are so passionate about getting more of, but as soon as we turn the very same rules, OFT regulations, white data or CCA on them they run like babies cuddling teddies back to their prams crying 'unfair'.

 

Abide by the laws - we all go away, stop chasing uncollectable and statute barred debts and debt that they are obviously looking at which are unlawfully executed - we go away, stop using bully-boy tactics - we go away, if they concentrated on collecting bone fide debt, which has been assigned correctly, which has all the correct information, which are correctly identified to the correct people, which are executed in the proper formats via the fun factory in Rugby then, and only then will Cabots profits return to some normality and Mr Maynard can relax his twichy muscles a bit and Glen can go off and buy another Aston.

 

The Laws - read and learn and abide by them Cabot.

 

So you see Sherlock, the campaign is not to encourage the morally corrupt to not pay what is due, the campaign is to make Cabot do what they are supposed to, legally, lawfully, compassionately, professionally and not to try and bulldoze their way through people's lives. The industry has changed - they haven't!

 

As we've seen, they don't like it any more than we do and having some of their own medicine should have taught them by now that we are right and they are wrong. That's just too much for Kenny to look in the mirror in the morning and admit, his pride wouldn't allow it, but Training - more training Kenny, that's what your guys and gals need!

 

We are not all Rouge Debtors and 'won't payers' (even though Sherlock admits to being one ) people, strangely enough do have morals out here so please go away and focus on the legal and professional aspects of your business from the time you buy these debts to the time you execute your wares upon the 'customers'.

 

This is the message I will be portraying to your prospective client I have been invited to visit in a few days time with one of my erstwhile Fan Club colleagues. I will not be ruthless, you are a business and there are certain apsects which actually do fair better than some of your competitors out there, but...and it's a big but too...you still will not learn and are far too focussed on getting your own back for this consumer backlash we started. (mind you with £18 million loss, I might be a bit miffed too ). Get back to your desk and stop whinging and focus on the important parts of your business - Rugby would be a good place to start too

 

 

Affectionately, your very own,

 

Cabot Fan Club